In an action of damages, on account of an alleged libel published in a newspaper, with which the defender was said to be responsibly connected, the pursuer, with a view to establish this connection, craved production or inspection of the books of the paper. These were in the hands of a third party, who refused this, alleging that he was sole proprietor of the news paper and that the examination of the books could not take place, without a disclosure of his affairs, which would be very prejudicial to his interest. The Court directed, that the Commissioner in the proof should have access to the books, and produce what excerpts from them he should think necesary.
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In an action of damages brought by John Cadell against John Morthland and John Johnstone, on account of an alleged libel against him, which, in September 1797, had appeared in a newspaper called the Scots Chronicle, of which Johnstone was the pointer, and with which Mr Morthland was averred to be responsibly connected, a proof was allowed, partly in order to ascertain the nature of this connection.
According to the deposition of one of the witnesses, Mr Morthland occasionally wrote entries in the book, which, with other material points, it was expected would appear from inspection of them.
They were in possession of Robert Paul, who, on his examination as a witness, was required by the pursuer to produce them, or allow them to be inspected by some confidential person, down to the date of the publication complained of. But he refused to do either, alleging that he had purchased the property of the newspaper in March 1797, that, therefore, the books were his; and that the examination craved, would occasion a disclosure of his affairs very prejudicial to his interest, and to which, as he was not a party to the process, he was not bound to submit.
Upon advising a petition for the pursuer, with answers for Paul, the Court, in general, were clear that the demand was reasonable. Whenever (it was observed) in order to explain a point in dispute between two parties, an inquiry into the transactions of one ot them with a third becomes necessary, the books of the latter, if material information, be expected from them, must be exhibited, but in such a manner as will occasion least inconvenience to him.
The Sheriff-depute of the county of Edinburgh, (the Commissioner in the proof), was ordained to get access to the books, and to produce what excerpts from them he should think material.
Lord Ordinary, Methven.Act. Lord Advocate Dundas, Solicitor-General Blair, Hope, Boyle,Alt. Jo. Clerk.Clerk, Home.
Fac. Col. No. 101. p. 237.
